Wells Fargo Bank, N.A. v. Ndiaye , 146 A.D.3d 684 ( 2017 )

Wells Fargo Bank, N.A. v Ndiaye (2017 NY Slip Op 00552)

Wells Fargo Bank, N.A. v Ndiaye

2017 NY Slip Op 00552

Decided on January 26, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 26, 2017
Acosta, J.P., Mazzarelli, Feinman, Webber, JJ.

2875

[*1]Wells Fargo Bank, N.A., as Trustee for Securitized Asset Backed Receivables, LLC Trust 2005-FR4 Mortgage Pass-Through Certificates, Series 2005-FR4, Plaintiff-Appellant,

v

Mbaye Ndiaye, Defendant-Respondent, United States of America, et al., Defendants.

Shapiro, DiCaro & Barak, LLC, Rochester (Ellis M. Oster of counsel), for appellant.

Stella Azie, Bronx, for respondent.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered November 9, 2015, which granted the motion of defendant Mbaye Ndiaye to dismiss the complaint as against him with prejudice, unanimously reversed, on the law, without costs and the motion denied.

The dismissals of plaintiff's prior actions without prejudice premised on lack of standing were not dismissals on the merits for res judicata purposes (see Tico, Inc. v Borrok, 57 AD3d 302 [1st Dept 2008]). Despite the purportedly invalid assignment of the note to plaintiff, plaintiff may nevertheless establish its standing by demonstrating that the note was in its possession or that it was delivered prior to the commencement of this action (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 26, 2017

CLERK